Challenges Facing California and the Western States

Views and opinions expressed by the Federalist Society are not necessarily shared by the Ronald Reagan Presidential Library.

Luncheon Exchange:

Hon. Alex Kozinski,
U.S. Court of Appeals,
Ninth Circuit

and

Hon. Stephen Reinhardt
U.S. Court of Appeals,
Ninth Circuit

Agenda:

California in Crisis: Are People and Jobs Leaving for Better Pastures? - Audio
10:15 a.m. - 12:00 Noon
Much has been written lately about companies’ unwillingness to invest or create new jobs in California. 2010 was the first census in which California did not add a member of Congress. Other states, including Texas, are seeing large influxes of new jobs and people. Some have suggested that California law (as passed by the legislature and as made by the courts) contributes to a negative business climate that discourages investment and job creation. This panel will look at California laws involving employment issues, tort liability, and environmental regulation and compare California’s approach to those of other states, including Texas to determine whether the law has become an impediment to job creation in California.

Federalism and State Immigration Policy - Audio2:15 p.m. - 4:00 p.m.Arizona v. United States raises several cutting edge questions about federal preemption of state laws. These questions derive from Arizona’s “mirror image theory” of the case. That is, Arizona argues that its statutes are a mirror image of federal statutes, and therefore that no preemption problem exists. In arguing against that theory, the federal government has voiced what has been unflatteringly called “preemption by executive whim.” That is, that preemption can be created by federal executive branch enforcement (or, non-enforcement) priorities that essentially ignore enforcement of the statutes being mirrored. What do those competing claims mean in preemption analysis where, traditionally, courts have looked to the law as written/established, rather than as enforced?

Another big question here is whether a state may have specific policies where either (1) the federal government does not, or (2) the federal government is perceived to have failed in its policies. Arizona has expressly adopted a policy of “attrition through enforcement” in regard to illegal aliens. The federal government, on the other hand, has not ever adopted such a policy. As Ilya Shapiro put it, the national immigration system “is a remnant of various half-baked ‘reforms’ going back decades, it’s a schizophrenic set of laws that don’t advance any particular goal or mission.” Does a “policyless” federal system conflict with a state system that has a policy? Does it matter if that policy is “attrition through enforcement” or “sanctuary cities”? Moreover, does the federal government’s “failure” to have a workable or actual policy free a state to derive its own policy, at least where that vacuum of federal power is seen as having specific negative effects on the state?

Panelists:

Prof. Gabriel “Jack” Chin, UC Davis School of Law

Prof. John Eastman, Chapman University School of Law

Mr. Joe Sciarrotta, General Counsel to Governor Jan Brewer, Arizona

Prof. Margaret Stock, Counsel, Lane Powell LLC

Moderator: Hon. Edwin Meese, The Heritage Foundation and former U.S. Attorney General